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HQ 967365




October 27, 2005

CLA-2 RR:CTF:TCM 967365 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8306.29.0000

Port Director

U.S. Customs and Border Protection

10 Causeway Street, Rm. 603
Boston, MA 02222
Attn: Protest and Control

RE: Application for Further Review of Protest No. 0401-04-100193; WWE replica Championship belts.

Dear Port Director:

This is our decision on the Application for Further Review (AFR) of Protest No. 0401-04-100193, filed on behalf of the importer, Figures, Inc. (protestant), against your classification of what was described on the entry documents as replica World Wrestling Entertainment (WWE) “Championship Belts” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Review of the AFR is warranted pursuant to 19 CFR § 174.24 which states in relevant part that an AFR will be granted when the decision against which the protest was filed (a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Additionally, 19 CFR §174.25(b)(3) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review. Accordingly, the AFR is proper.

FACTS:

The protest covers eight entries of the subject merchandise entered between May 20, 2003 and April 2, 2004. The subject merchandise was entered under subheading 8306.29.0000, HTSUSA, as ornaments of base metal. Protestant received New York Ruling Letter (NY) K86424, dated June 25, 2004, advising that the proper classification for the subject merchandise was in subheading 3926.20.9050, HTSUSA, as other articles of plastic, apparel. Protestant challenges the liquidation of the merchandise under subheading 3926.20.9050, HTSUSA, and maintains that NY K86424 conflicts with previous decisions of the Bureau of Customs and Border Protection (CBP).

A description of the merchandise set out in NY K86424 states:

The submitted sample is Item # 53734 Tag Team Championship Replica Belt. You state that the belt is constructed of PVC simulated leather with affixed metal medallions. The belt comes in a fitted fabric case with a zipper.

You propose classification under subheading 8306.29.0000 as other ornaments of base metal. However, the metal is mere decoration on the belt, the PVC simulated leather gives the belt its form and structure. In addition, descriptive literature states that the replica is “Molded directly from the original belt. It is the same thickness and length as the original belt and measures 4 feet 4 inches in length . . . It is fastened by 8 snaps on each side. Fits up to 44 inch waist.

A sample has been submitted to CBP. The sample is similar to the description given in NY K86424. The sample weighs five pounds. The World Wrestling Entertainment™ logo adorns the plastic belt portion and base metal medallions. The base metal medallions appear plated in a shiny metal similar in appearance to gold, however, its exact composition is unknown. The metal medallions exhibit various other scenes depicting wrestlers in various poses, as well as crowns and other symbols. The center plate is approximately 10 inches high by 12 inches long and states: “World Wrestling Entertainment™ Tag team Champions.”

The information indicates that the sample belt and description of the belt in NY K86424 essentially matches the description of the subject merchandise in all material aspects. The protestant has submitted new information indicating that both the metal components and the PVC belt portion contribute relatively equally to the bulk or weight of the article. However, substantially more of the value of the article is provided by the metal medallions.

The belts were entered under subheading 8306.29.0000, HTSUSA, which provides for, “Belts, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof: Statuettes and other ornaments, and parts thereof: Other.” However, the entries were liquidated on June 11, 2004, under the subheading 3926.20.9050, HTSUSA, which provides for, “Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves, mittens and mitts): Other: Other.”

This protest was timely filed on September 9, 2004.

ISSUE:

Whether the instant championship belt is classified under heading 3926, HTSUS, as an other article of plastic, or under heading 8306, HTSUS, as other ornaments of base metal.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings. In such a case, classification of the goods shall be effected as follows: “[GRI 3](a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description.”

The HTSUS provisions under consideration (2003/2004) are as follows:

Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves, mittens and mitts): Other:
3926.20.90 Other.
3926.40.00 Statuettes and other ornamental articles.

8306 Belts, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof: Statuettes and other ornaments, and parts thereof: 8306.29.00 Other.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The protestant argues that the subject merchandise is correctly classified under subheading 8306.29.0000, HTSUSA, as an ornament of base metal. The protestant argues that the subject merchandise is not apparel or a clothing accessory of plastic; that the subject merchandise are composite goods under GRI 3(b); that the essential character of the subject merchandise is provided by the metal medallions; and that the subject merchandise is meant primarily for display.

Based upon new information on the subject merchandise and similar merchandise, and our own research it has become apparent that the subject merchandise is not apparel or a clothing accessory of plastic.

Heading 3926, HTSUS, is a “basket” provision for articles of plastics. EN 39.26 provides the following guidance in regard to heading 3926, HTSUS:

This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.

They include:

Articles of apparel and clothing accessories (other than toys) made by sewing or sealing sheets of plastics, e.g., aprons, belts, babies’ bibs, raincoats, dress-shields, etc. Detachable plastic hoods remain classified in this heading if presented with the plastic raincoats to which they belong . . .

(3) Statuettes and other ornamental articles [emphasis in original]. . . .

The protestant argues that the subject merchandise is correctly classified under heading 8306, HTSUS. EN 83.06, states, in pertinent part, that:

(B) STATUETTES AND OTHER ORNAMENTS

This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.

It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.

The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:

Busts, statuettes and other decorative figures; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc. (animals, symbolic or allegorical figures, etc.); sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods of cast or forged metal (usually of wrought iron); knick-knacks for shelves or domestic display cabinets [emphasis in original]. . . .

The belts are articles of plastic in part only. They also contain medallions of base metal. There is no specific heading for goods consisting of these items attached together. Thus, for tariff purposes, the subject merchandise constitutes a good consisting of two or more substances or materials. Accordingly, it may not be classified solely on the basis of GRI 1. Further, GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the product is imported in a finished condition. According to GRI 2(b), the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. As the belts are composite goods, we must apply GRI 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character.

EN VIII to GRI 3(b) explains that "[t]he factor which determines the essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods."

New information presented to CBP, and our own research caused us to reconsider the classification in NY K86424. In NY K86424, CBP classified the article as apparel or a clothing accessory of plastic. In NY K86424, CBP stated, in relevant part, “However, the metal is mere decoration on the belt, the PVC simulated leather gives the belt its form and structure.” Implicit in this analysis, is that the PVC belt component provided the essential character of the article. However, we now believe that the PVC belt portion does not impart its essential characteristic. Upon further review of the information submitted and the classification in NY K86424, we concluded that the classification of the article in K86424 was incorrect. That ruling was revoked by HQ 967749, dated September 19, 2005. See CUSTOMS BULLETIN of October 5, 2005, vol. 39, no. 41 (containing HQ 967749).

The subject belts are not clothing accessories. They do not exhibit the relationship with clothing necessary to be considered an accessory to clothing nor do they adorn or accent clothing. Furthermore, the subject merchandise does not serve a utilitarian purpose, such as securing pants. It is primarily meant for display or decoration.

We must consider other criteria in determining essential character, as outlined above. Both the metal components and the PVC belt portion contribute relatively equally to the bulk or weight of the article. However, substantially more of the value of the article is provided by the metal medallions. Moreover, it is the metal medallions that provide the majority of the decorative aspects of the belt. We conclude that the essential character of the replica championship belt is provided by the medallions of base metal, which provide the indispensable aspect to the belt – its decorative appeal.

Other CBP rulings have classified similar type of articles as decorative articles. In NY 806371, dated February 10, 1995, CBP found that lapel pins mounted in a frame for display were not meant to be worn but were meant to be hung as a decoration. Therefore, those lapel pins were classified under heading 8306, HTSUS. In NY H81608, dated May 16, 2001, lapel pins were either mounted in a frame or presentation box upon importation, or the pins were imported as a set and mounted into frames in the United States. In these rulings, CBP stated that the pins were not meant to be worn, and were, in fact too large to be worn on the person, but instead were to be displayed as a decoration. Research of Internet sites advertising championship belts of this type indicate they are not worn as apparel or clothing accessories, because of their size, weight and overall cost. See, e.g., www.midwestwrestling.com, www.wrestlingsuperstore.com, and www.championshipbelts.com. Instead, they are used for display in the home.

We find that the subject merchandise is within the scope of the description provided in the heading text of 8306, HTSUS. This conclusion is supported by EN 83.06, cited above. Based on the foregoing analysis, the subject merchandise is classified under subheading 8306.29.0000, HTSUSA.

With regard to the fitted fabric case with a zipper in which the subject merchandise is imported, we believe that GRI 5(a) is applicable. GRI 5(a) provides, in relevant part:

Camera cases, musical instrument cases, . . . and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;

Based on the available information, the fitted fabric case meets the terms of GRI 5(a) and is classified with the championship belt accordingly.

HOLDING:

At GRI 3(b), the subject merchandise is provided for in heading 8306, HTSUSA. It is classified under subheading 8306.29.0000, HTSUSA, as “Belts, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof: Statuettes and other ornaments, and parts thereof: Other.” The 2003/2004 column one, general rate of duty is free.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

The protest should be ALLOWED. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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